The opportunity to stay at the Open Air Camp is subject to good behavior, and safety concerns alone cannot justify rejection.

JUDGMENT

1. The instant writ petition has been preferred by the convict petitioner Krishna Murari @ Manish for assailing the adverse recommendations dated 15.07.2021 issued by the Open Air Committee, Government of Rajasthan, Jaipur whereby, the application preferred by the convict petitioner for being sent to the Open Air Camp was rejected.

2. Learned counsel for the petitioner submits that petitioner is eligible for transferring the Open Air Camp. As per the seniority, he fulfills all the requisite qualifications for availing Open Air Camp. Learned counsel for the petitioner also submits that the petitioner had preferred D. B. Criminal Appeal No.76/2019 against the conviction order which is pending in this Court. Learned counsel for the petitioner also submits that case of the petitioner for transferring the Open Air Camp was placed before the Prisoners Open Air Camp Advisory Committee and Committee rejected the case of the petitioner on the ground that as per Rule 6(A) of Rajasthan Open Air Camp Rules, 1972 petitioner is not eligible for granting Open Air Camp reasons given by Committee that the petitioner was convicted for the offence under Sections 306 and 376(D) IPC and 3/4 & 11/12 of POCSO Act, 2012. The Committee in its order stated that other convicts are residing in the Open Air Camp with their wives and daughters and hence, it is not safe to send the petitioner to Open Air Camp.

3. The Division Bench of this Court in the case of Subhash Chand v. State of Rajasthan & Ors., (D.B. Civil Writ Petition No. 12020/2013, decided on 30th August 2014 reiterating its earlier view in Krishna & Anr. v. State of Rajasthan & Ors. : 2004 (4) WLC (Raj.) 582 & Geeta Devi v. State of Rajasthan : 2012 (3) WLC (Raj.) 146, has held in paras 10 and 11 of the said Judgment, ad-infra:-

"10. Since rule 3 of the Rules of 1972 has already been considered and the word 'ordinarily' has already been interpreted as 'not necessarily', therefore, respondents cannot refuse to accept and consider the applications of the petitioners, subject to other conditions. The present matters are fully covered by decisions of this Court in Krishna & Anr. v. State of Rajasthan (supra) & Geeta Devi v. State of Rajasthan (supra).

11.In view of above discussion, we allow both the writ petitions and direct the respondents to accept and consider the applications of the petitioners for their transfer to open air camp, in accordance with law and in case they are otherwise eligible, as early as possible, but not later than a period of three months from the date of receipt of copy of this order."

4. I have heard and considered the submissions advanced by the petitioner's counsel and the learned Public Prosecutor have gone through the impugned order and the material placed on record.

5. In view of the above, respondents has wrongly rejected the application of the petitioner for availing the Open Air Camp. In my considered opinion, observation made by the Committee in the adverse recommendations is absolutely extraneous and unwarranted. Merely because the convict is of young age and other ladies/ girls are living in the Camp, that by itself would not imply that the accused would misbehave with them. Needless to say that if any convict is found behaving in an improper manner while being at the Open Air Camp, the indulgence so granted can always be cancelled because the opportunity to continue at the Open Air Camp is always subject to display of good behaviour by the convict.

6. As a consequence, the impugned recommendations dated 15.07.2021 issued by the Open Air Committee, Government of Rajasthan, Jaipur are hereby quashed qua the petitioner. It is hereby directed that the convict petitioner shall forthwith be sent to the suitable Open Air Camp.

7. The writ petition is allowed accordingly.